Qin Yuan v. Michael B. Mukasey , 306 F. App'x 341 ( 2009 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 07-2853
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Qin Yuan, *
*
Petitioner, *
* Petition for Review of
v. * an Order of the
* Board of Immigration Appeals.
Michael B. Mukasey, Attorney *
General of the United States, * [UNPUBLISHED]
*
Respondent. *
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Submitted: December 12, 2008
Filed: January 9, 2009
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Before MURPHY, BYE, and BENTON, Circuit Judges.
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PER CURIAM.
Chinese citizen Qin Yuan petitions for review of an order of the Board of
Immigration Appeals affirming an Immigration Judge’s (IJ’s) denial of asylum and
withholding of removal. We lack jurisdiction to review determinations regarding the
untimeliness of Yuan’s asylum application, the absence of changed circumstances
materially affecting her eligibility for asylum, or the lack of extraordinary
circumstances justifying the untimeliness of her filing. See 8 U.S.C. § 1158(a)(3);
Bejet-Viali Al-Jojo v. Gonzales, 424 F.3d 823, 826-27 (8th Cir. 2005).
For withholding of removal, Yuan had to show a clear probability that if she
were removed to China her life or freedom would be threatened based on her practice
of Falun Gong. See Alanwoko v. Mukasey, 538 F.3d 908, 911 (8th Cir. 2008); see
also Eta-Ndu v. Gonzales, 411 F.3d 977, 982-83 (8th Cir. 2005) (standard of review).
The IJ found Yuan’s testimony not credible, citing her discomfort in answering
questions and her lack of knowledge about Falun Gong. Despite Yuan’s proffered
explanation of nervousness and possible translation difficulties, we conclude that we
should defer to the IJ’s finding. See Osonowo v. Mukasey, 521 F.3d 922, 927 (8th
Cir. 2008) (to overturn adverse credibility finding, court must conclude both that
persuasive case has been made for opposite position, and that any reasonable fact
finder would be persuaded by it); Lin v. Gonzales, 446 F.3d 395, 400-01 (2d Cir.
2006) (demeanor is virtually always evaluated intuitively and subjectively; noting that
fact finder is in best position to discern, inter alia, whether question was understood,
and whether hesitating witness was attempting truthfully to recount what he recalled
or struggling to remember lines of carefully prepared script).
Accordingly, because the IJ’s denial of withholding of removal was based on
his adverse credibility determination, which we accept, we deny Yuan’s petition for
review.
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